Central Administrative Tribunal - Cuttack
S N Mishra vs National Aluminium Company Limited, ... on 29 January, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 322 of 2015
Heard & reserved on: 09.01.2024 Order on: 29.01.2024
Present:
Hon'ble Mr. Pramod Kumar Das, Administrative Member
Hon'ble Mr. Rajnish Kumar Rai, Judicial Member
In the matter of
Satchida Nanda Mishra,
aged about 54 years,
Son of Late Nagendra Nath Mishra,
At-Mishrapada, Po-Angul, Dist Angul,
At present working as A.G.M.(Mechanical),
Captive Power Plant, NALCO, Angul,
Dist-Angul, Pin-759145
............. Applicant
-Versus-
1. Union of India, represented through
Its Secretary to Govt. Of India,
Ministry of Mines,
New Delhi- 110001.
2. The Chairman Cum Managing
Director, NALCO, P/1, Nayapalli,
Bhubaneswar, PIN-751013.(Odisha)
3. The Asst. General Manager,(HRD),
NALCO, P/1, Nayapalli,
Bhubaneswar,PIN-751013.
....... Respondents.
For the applicant :Mr.T.Rath, Counsel
For the respondents :Mr. M.K. Mishra, Mr.D.K.Patnaik, Mr.G.R.
Verma, Counsel
O.A.No.322of 2015
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ORDER
Rajnish Kumar Rai, (JM) The instant Original Application has been filed by the Applicant under Section 19 of the Administrative Tribunal Act, 1985 seeking the following relief(s):-
"(i)Direction/Directions be issued to the Respondents No.2 to give promotion to the applicant from E6 to E7 retrospectively with all consequential benefits by holding review DPC from the date of the promotion of his Juniors like Sri S.R.Patnaik, Sri KB Swain and R Waris, taking into consideration of the appraisal rating afforded by the Reporting and Reviewing authorities and the Rationalisation Committee in the AARs for the year2011-12,2012-13 and 2013-14 ignoring the points awarded by the then Cadre controlling authority and the Accepting Authority i.e. S.S. Mohapatra and another and quashed the orders under Annexure- A/10 and A/11.
ii) Direction/directions be issued as deemed fit and proper so as to give a complete relief to the applicant."
2. The brief facts of the case are that the Applicant was initially joined in NALCO as Graduate Engineer trainee (GET) in the level of E0 in the stream of Mechanical on 22.11.1984 and on successful completion of the training confirmed to E01 grade O.A.No.322of 2015 3 w.e.f. 04.06.1986. Subsequently, he was promoted to E02, E03, E04, E05, E06 grades w.e.f. 01.01.1989, 01.01.1992, 01.01.1995, 01.01.1998, & 01.07.2002 respectively. It is submitted by the learned counsel for the Applicant that Applicant is bounded by NALCO Recruitment and Promotion Rules for Executives-1997 (hereinafter referred to as Rules). As per the Rules, for promotion from E6 to E7 AAR marks of 2011-12, 2012-13 and 2013-14 are to be considered. The same was never communicated to the Applicant. It is submitted by the learned counsel for the Applicant that the Applicant had joined in the Grade of E6 in 01.07.2002 and was in the 7th place in the Seniority list of E6 (Mechanical) grade published on 09.05.2015.Three executives were found to have been promoted against the vacancy year 2013-14 from E6 to E7 grade in the DPC held on 06.02.2015 (Annexure-A/3) and all these three namely S.R.Pattnaik, K.B.Swain, and R.Waris whose names were at Sl.Nos. 33, 43 & 44 as per the seniority list published on 09.05.2015 (Annexure-A/2) with the qualifications of B.Sc. ENGG (Mechanical) were pretty junior to the applicant as they had joined in the grade of E6 in 01.07.2007.The Applicant preferred an appeal against the illegal down in the gradation O.A.No.322of 2015 4 which was regretted by the Appellate Authority in a cryptic manner without going through the appeal. Therefore, he had preferred a written complaint about the matter to the CVO, NALCO who submitted its preliminary enquiry report vide order dated 27.08.2015 with its finding at para 5.6 that the AARs, which adversely affected his promotion, were not disclosed to the Applicant to render him an opportunity to represent against the grading and instead those were uploaded in the internet after the meeting of the DPCs held on 27.03.2014 and 05.02.2015 for the vacancies of 2013 and 2014 respectively. As are result Applicant was debarred from his legitimate promotion from E6 grade to E7 grade in the DPC of 2014 for the vacancy of 2013 -2014. It is further submitted that the preliminary report of the CVO it would be evident that so far as the above three employees were concerned even though in the case of them up to the stage of rationalization committee the awarded points was very low the same had been upgraded unholistically without any rhyme or reason, which had been strongly disapproved by the CVO itself.
3. It is further submitted by the learned counsel for the Applicant that this Tribunal directed the Respondents to hold the O.A.No.322of 2015 5 review DPC for the vacancy year of 2013-14 and to promote the Applicant retrospectively from the date of promotion of his juniors like Sri Pattnaik, Sri Swainand, Sri Waris on 01.07.2013, taking into consideration of his rating in the AARs for the years 2011-12, 2012-13 and 2013-14 by the reporting authority and review authority as has been held by the Hon'ble Apex Court in the case of "U.C.Panda Vs. UOI & Ors, 2011(1) GLT 614", that non- communication of the adverse remarks causes prejudice and amounts to violation of principles of natural justice, in the case of "Abhijit Ghosh Dastidar Vs UOI & Ors, 2009 (16) SCC 146", that the uncommunicated adverse remarks cannot be considered for promotion.
4. It is the contention of the learned counsel for the Applicant that the Order under Annexure-A/10 is equally bad in law as apparently the same is bereft of any reason, non-speaking and has been passed deliberately to cover up the latches committed by the Cadre Controlling Authority as well as Accepting Authority, who have acted hands in glove and have ensured downgrading of the points awarded by the rationalization committee, with deliberate intention to ensure that the Applicant O.A.No.322of 2015 6 remains out of zone of consideration on account of such lesser points in comparison to his juniors.
5. The learned counsel for the Respondents in their counter inter alia submitted that the instant O.A. was filed by the Applicant before this Tribunal seeking relief for retrospective promotion from E06 to E07 Grade. Pending final decision on the application, direction may be issued to Respondent No.2 to dispose of the representation of the Applicant giving due and reasonable opportunity of hearing. However, the present OA was disposed of by this Tribunal at the admission stage vide order dated 19.06.2015 with a direction to dispose of the representation of the Applicant. Incompliance to the aforesaid order of this Tribunal, the Respondents disposed of the representation of the Applicant vide order dated 14.10.2015(Annexure-A/11) by rejecting the claim of the applicant. Thereafter, the Applicant approached the Hon'ble High Court in WP(C) No.6984 of 2017. The Hon'ble High Court vide its Order dated 19.12.2019 quashed and set aside the impugned order and the matter was remitted back to the Tribunal for fresh adjudication.
O.A.No.322of 2015 7
6. It is the contention of learned counsel for the Respondent that the Applicant was inducted to the company as Graduate Engineer trainee on 22.11.1984 and on successful completion of the training confirmed to E01 grade w.e.f. 04.06.1986. Subsequently,he was promoted to E02,E03, E04, E05, E06 & E07 grades w.e.f. 01.01.1989, 01.01.1992, 01.01.1995, 01.01.1998, 01.01.2002,01.01.2016 respectively. All the above promotions were made as per the extant promotion Rules of the Company (Annexure-A/15).It is further submitted that as per Clause-1.1.21.3 of NALCO Recruitment & Promotion Rules for Executives 1997, the qualifying period for promotion from E06 to E07 grade is 03(three) years. Therefore, it is obvious to consider the appraisals for the concerned periods. The Applicant had got 05 promotions in his service career in line with the above rules and well aware of the system. Furthermore, after finalization of the Annual Appraisal, the final rating for the concerned appraisal period is being uploaded in the personal domain of the appraisal to make themselves aware of his/her rating. Since there are no adverse remarks in his appraisal, no specific communication had made to the applicant.
O.A.No.322of 2015 8
7. It is the contention of the learned counsel for the Respondents that as per Rule-1.1.22.3of NALCO Recruitment & PromotionRulesforExecutives1997, promotion from E06 to E07is vacancy based and purely on merit only. During the DPC -2014 (heldon05.02.2015) the merit of the Applicant found 23rd position in the merit list considerably lower than the promoted Executives. Since there was 03 vacancies, only 09 candidates called for personal interview. Hence, his case was not considered. Thus, the seniority position in the grade is immaterial for promotion. However, 2.5marks is being awarded for every completed year of service beyond the eligibility period, subject to maximum of 15 years. The merit position in the cadre and grade is derived by taking into account the weighted average of last three years appraisal marks, maximum 75 and the seniority mark, so accrued by the executive. As per Rule-1.1.22.6, the candidates are being cancelled for personal interview from the merit list as per the following ratio.
No. of Vacancies No. of candidates to be called for interview 01 05 02 08 O.A.No.322of 2015 9 03 3 times the number of vacancies For the DPC-2013 (held on 27.03.2014) & DPC-2014 (held on 05.02.2015) there were 05 & 03 vacancies respectively, against which 15 & 09 candidates called for personal interview respectively. Since the applicant stood at 30th & 23rd in the merit position in the respective DPC, he was not called for personal interview. The Applicant has not made parties to those alleged junior persons nor challenged their promotion to the rank of E6 to E7.Therefore, the O.A. suffers from non-joinder of parties and the applicant is stopped to raise such issue order as the order of promotion became final as the same has not been challenged. Furthermore, after finalization of the Annual Appraisal, the final rating for the concerned appraisal period is being uploaded in the personal domain of the appraisee to make themselves aware of his/her rating. The Applicant has also procured his AARs for the relevant period under RTI Act. Hence, it is not a case of super session as claimed by the Applicant.
8. It is further submitted by the learned counsel for the O.A.No.322of 2015 10 Respondents that in compliance with the Order of this Tribunal dated 19.06.2015 passed in O.A.No.322/2015 the representation of the applicant dated 28.02.2015 was disposed of by the Respondents with a well-reasoned order dated 14.10.2015.
9. It is the contention of the Respondents that in the Preliminary Report submitted to CVO and the Factual Report submitted to CMD, Vigilance Department has pointed out certain irregularities in the system of appraisal and suggested remedial action. However, the Vigilance findings do not support the contention of the applicant that the reduction of marks of the Rationalization Committee by Cadre Controlling ED and Higher Authority is done with malicious and corrupt motive to promote the juniors. The Applicant also submitted a grievance petition to the CMD, the Chief Executive of the Company questioning the authority of the Accepting authority (i.e, Functional Director) to reduce the appraisal marks given by the Rationalization Committee and for restoration of marks given by the Rationalization Committee by treating the marks of the Accepting Authority as null and void. The petition was duly considered and a communication was issued to the Applicant vide letter dated O.A.No.322of 2015 11 01.08.2015(Annexure-A/10).Thus it is clear that even though the appraisal marks were disclosed late, the Applicant was afforded opportunity to appeal. However, his appeal was disposed of with due consideration and it did not result in any change in the ratings which could have upgraded his position in the merit list thereby bringing him within the zone of consideration for promotion. The order dated 01.08.2015(Annexure- A/10) has not been challenged in the earlier O.A. The same has been challenged after a lapse of more than five years. Therefore, the prayer relating to ignoring the points awarded by the then Cadre Controlling Authority and Accepting Authority for the year 2011- 12, 2012-13 and 2013-14 and quashing of the order under Annexure-A/10 are after thought and grossly barred by limitation. The same cannot be entertained at this belated stage as the Applicant has not challenged the same earlier.
10. It is further submitted by the learned counsel for the Respondents that DPEOM No5(1)/2000-GM dated 28.05.2009 and para 10.3.6.1 of the Procedure Manual of Executive Performance Appraisal system has no relevance to the allegation O.A.No.322of 2015 12 of the Applicant against the Cadre Controlling Authority and the Accepting Authority for downgrading the Appraisal ratings of the Applicant. The aforesaid OM only provides for disclosure of the total Appraisal including the final grade to the Appraisee and the para No.10.3.6.1 only deals with the composition of Rationalisation Committee (RC). It is submitted that as per the Executive Performance Appraisal Procedure Manual the appraisal ratings of the appraisee recommended by the Rationalization committee is put up to Higher Authority i.e the Cadre Controlling Executive Director (CCED) in case of the Applicant and the Accepting Authority (AA) before finalization. Therefore, the reduction in the marks of the Applicant awarded by the Rationalization Committee by the Cadre Controlling Executive Director and Accepting Authority is well within their power and as per the appraisal procedure. So far as rationalization process of the company is concerned, it is a comparative method of evaluation and being done unit/office wise in a particular cadre and grade. Thus, the Rationalization Committee deals with a section of executives whereas CCED and AA deals with the cases of overall executives of the company in a particular cadre and O.A.No.322of 2015 13 grade. But such rationalization cannot be ascribed to any malafide intention of the authorities without any evidence and cannot be termed illegal.
11. It is the contention of the Applicant that as per Clause-10.3.4 the rationalization of rating of the executives shall be through three stages. The ratings shall be placed before the Rationalisation Committee which shall be routed through cadre controlling Executive Director, before placing with Accepting Authority for final acceptance of the rating. Since it is a composite process, Cadre Controlling Executive Director and Accepting Authority are not out of the mechanism. Therefore, the claim of the applicant that his appraisals are downgraded by Cadre Controlling Authority and Accepting Authority is not correct. Since appraisal process of the Applicant for the year 2011-12, 2012-13 and 2013-14 were found in order, the management regretted to review the same, for which he had made an appeal vide his representation dated18.06.2015.
12. The applicant has filed his rejoinder reiterating the points raised in the Original Application.
13. Learned counsel for the respondents had relied on few O.A.No.322of 2015 14 decisions including the following:
1. Hon'ble High Court of Orissa in Satyajit Sahoo vrs State of Orissa MANU/OR/0468/2015.
2. Hon'ble High Court of Orissa in Purusottam Behera vrs State of Orissa MANU/OR/0044/2019.
3. Hon'ble Apex Court in the case of Udit Navain Singh Malpharia vs Additional Member, Board of Revenue, Bihar AIR 1963 SC 786
4. Hon'ble Apex Court in the case of All India SC&ST Employees Association vs A. Anthur Jeen 2001(6) SCC 380.
5. Hon'ble Apex Court in the case of Commission, Corporation of Chennai vs R Sivasankara Mehta 2011(13) SCC 285
14. Heard learned counsel for the parties perused the records and citations.
15. This Tribunal earlier vide order dated 19.06.2015 had disposed of this OA with the following observations:
"In view of the above, since the representation of the applicant is stated to be pending without expressing any opinion on merit of the case. I dispose of this O.A at this admission stage by directing O.A.No.322of 2015 15 Respondent No-2 to consider and dispose of the representation (Annexure-5), if the same has been preferred by the applicant and is still pending consideration with a well reasoned order and communicate the same to the applicant within a period of 1 month from the date of receipt of a copy of this order. However, the points raised by the applicant in his representation are kept open for the authorities to consider the same as per the rules and regulations in force. If after such consideration the applicant is found to be entitled to the relief claimed by him then expeditious steps be taken preferably within a further period of three months from the date of such consideration to grant the said benefit to the applicant. If in the meantime the said representation has already been disposed of then the result thereof be communicated to the applicant within a period of two weeks from the date of receipt of copy this order."
16. In compliance to order of this Tribunal the respondents had considered and disposed of the representation of the applicant by passing the order dated 14.10.2015 which is inter alia reproduced below:-
1. Inviting reference to the order dated 19.06.2015 of Hon'ble CAT disposing of the OANo.260/00322 of 2015 of Shri SN Mishra in which the tribunal has ordered to consider and dispose with the representation of the applicant with a well reasoned order and communicate the same to the applicant.
2. Your representation was thoroughly examined with respect to the records related to the case. The facts of the case are mentioned here under.
3. That, you have complained of being superseded during promotion from E6 to E7 grade. As per R&P rule the promotion to E7 grade is vacancy based and on merit only. While going through the records of DPC for 2013 and 2014, it is observed that you stood at comparatively lower position to other eligible candidates in your cadre in the merit list considered for DPC. In DPC 2013, for 5 O.A.No.322of 2015 16 vacancies in Mechanical cadre total 15 candidates were called for interview as per the provision of R&P rule clause no1.1.22.6 and since you stood at 30 position in the merit list, you were not called for interview. Similarly, in DPC 2014, for 3 vacancies total 9 candidates were called for interview and you stood at 23rd position in the merit list. It is to mention here that the merit list is prepared based on seniority and weighted average of last three years ACRs. Hence, no superseding has taken place in above mentioned DPC.
4. That, the process of executive performance appraisal management is done as per the rules/ guidelines enumerated in the executive performance appraisal system procedure manual.
As per the manual, the performance appraisal process is carried out in two stages, the first one is completion of the performance appraisal report and the second process is the rationalization process. The rationalization process is carried out for all executives in order to meet the DPE guidelines and for payment of PRP. The rationalization process is done as cadre wise within a grade first by a Rationalisation Committee then by Cadre Controlling Executive Director and finally it is accepted by the Accepting Authority, i.e. functional Director up to E6 grade. For E7 grade the rationalization is done by committee of Directors and accepted by CMD. After the completion of the performance appraisal process, the final ratings of all the executives are uploaded in the Intranet from which each executive can view his appraisal rating and appeal against any dissatisfaction of the ratings receiver
5. That, there is no provision for conducting O.A.No.322of 2015 17 review DPC in the NALCO R & P Rules for Executives, the case of Shri RK Hansdah (P No:
00432) was considered for retrospective promotion w.e.f. 01/07/1992 to E4 and subsequently promoted to High Court of Odisha. Further, the case E5 grade w.e.f. 01/01/1996 as per the order of Shri Goutam Das was considered in Hon'ble compliance to the order of Ministry of Mines and the decision of the Board in its 256th meeting held on 29.09.20. These orders were considered with different perspectives and situations and cannot be equated with your present grievance. Hence, review DPC is not required in your case.
6. That, you had appealed to review the rating of 2011-12, 2012-13 and 2013-14 vide your representation dated 18/06/2015 which was regretted after due careful examination of your case and the decision conveyed to you vide letter no. CHRD/E-01299/2972/2015 dated 01/08/2015.
7. On perusal and careful scrutiny of facts, circumstances, related rules and relevant records, it can be concluded that there has not been lapse in relation to procedures and its recommendation in matter of promotion for 2013 and 2014 DPCs and also the reason for conducting a Review DPC for 2014 to consider your case for promotion to E7 grade.
This disposes with your representation as per order of Hon'ble CAT dated 19.06.2015.
This issues with the approval of Chairman-cum- Managing Director, NALCO."
17. The applicant then filed WP (C) No. 6984/2017 before Hon'ble High Court challenging the order dated 19.06.2015 passed by this Tribunal and order dated 14.10.2015 passed by O.A.No.322of 2015 18 the respondents and Hon'ble High Court vide order dated 19.12.2019 disposed of the said writ petition with the following directions:
"3. Learned counsel for the petitioner relied upon the judgment of this Court in Harjit Kaur vs State of Orissa reported in AIR 2014 Orissa 198. He further drew our attention paragraph 3 of its order of learned Tribunal which is reproduced hereunder for ready reference.
XXXXX
4. In view of the above, the impugned order is required to be set aside and the matter be remanded back for fresh adjudication. Accordingly, the impugned order is quashed and set aside and the matter is remitted back to the learned Tribunal for fresh adjudication. We hope and trust, learned Tribunal will hear and dispose of the matter afresh keeping in view the ratio of this Court's decision in Harjit Kaur (supra) as expeditiously as possible."
18. Before going further it would be relevant to extract the order of Hon'ble High Court of Orissa in Harjit Kaur vs State of Orissa which is reproduced below:
'3.)Mr. S. K. Das, learned counsel appearing for the appellants assails the judgments passed by the learned Tribunal in G.I.A. Case Nos. 319 and 123 of2009 on the ground that the Presiding Officer, State Educational Tribunal instead of deciding the matter in conformity with the provisions contained in Section 24-B of the Orissa Education Act could not have referred the matter to the opposite party Nos.1 and 2, namely, the State of Orissa represented through Commissioner-cum-Secretary, Higher Education, Odisha and the Director, Higher Education, Odisha directing them to dispose of the grant-in-aid matter within three months from the date of communication of the order. He vehemently urged that without adjudicating the disputes, the learned Presiding Officer, State Educational Tribunal has no jurisdiction to remit the matter back to the authority for consideration and law does not permit the Tribunal to remit the matter back to the authority for consideration without O.A.No.322of 2015 19 adjudicating the same. He also alleges bias against the Presiding Officer, State Educational Tribunal while adjudicating the dispute on the question that similarly situated person, namely, Manoj Kumar Tripathy, who has approached the learned Educational Tribunal by filing G.I.A. Case No. 107 of2009, the Tribunal directed the opposite parties 1and 2 therein to verify the justification of the 2ndpost of Demonstrator in Physics and to consider the claim of the petitioner regarding his approval of appointment and release of grant-in-aid in accordance with the law within a period of six months from the date of receipt of the order, basing upon which he has received the said benefits from the Government vide letter NoHE/FE-IV(A)-CASE- 0680/2012-25810/HE, dated 19- 10-2012 though the date of appointment of Sri Manoj Kumar Tripathy vis-a-vis the appellants is the same and as such, concurrence of approval has been made by the authority in respect of the posts held by them. Hence, the learned Tribunal could not have made any discrimination, rather should have adjudicated the same by extending the benefits as admissible to the appellants at par with the case of Manoj Kumar Tripathy"
19. It is seen from records that nowhere in the OA, the applicant has made averment on the said fact about this Tribunal vide its order in any case, directed the respondents for review DPC and grant promotion to any employee. However it is seen that the applicant in his representation dated 28.02.2015 to the CMD, NALCO had cited two reference i.e. of employee having PL No. 00432 in 2004 and one Shri Goutam Das in 2011 where the respondents had conducted review DPC. No factual record has been placed before this Tribunal to ascertain the background, facts and circumstances of those cases and whether the said review DPC was done as per this Tribunal's order.
20. The applicant after his case was not considered in the DPC O.A.No.322of 2015 20 2014 had submitted a representation dated 28.02.2015 (A/5) praying for conducting a Review DPC to rectify the error in said DPC and had approached this Tribunal in the instant OA. This Tribunal had disposed of the said OA vide order dated 19.06.2015 directing the respondents to consider his representation. The applicant on 18.06.2015 submitted an appeal to the CMD NALCO under clause No. 2.3.3.4 of NALCO grievance policy for executive not being satisfied with the decision on the outcome of the grievance redressed by GM, CPP. In the representation dated 18.06.2015 it is stated that he had represented against deliberate down gradation of his performance appraisal rating of 2012-13 and non communication of his downgraded performance rating within a reasonable time period. It is also stated in the said appeal that reply to him was done vide order dated 18.05.2015. The respondents vide order dated 01.08.2015 (A/10) disposed of his appeal dated 18.06.2015 stating therein that his request for reviewing the appraisal rating for the year 2011-12, 2012-13 and 2013-14 has been regretted. The respondents in compliance to order of this Tribunal had also passed order dated 04.10.2015 rejecting the prayer of the applicant for review DPC.
O.A.No.322of 2015 21
21. Admittedly, the appraisals for the year 2012-13 was moderated by the Cadre Controlling Executive Director on 24.03.2013 and accepted by the authority on 27.03.2013. The DPC 2013 was held on 27.03.2014. For the year 2013-04, the appraisal was moderated by the Cadre Controlling Executive Director on 30.12.2014 and accepted by the authority on 31.12.2014 and the DPC 2014 was held on 05.02.2015. The applicant then filed representation dated 28.02.2015 for conducting review DPC and approached this Tribunal in the instant OA. Since the representation was pending this Tribunal had disposed of the OA vide order dated 19.06.2015 with direction to Respondent to consider and dispose of the same. The applicant on 18.06.2015 had also submitted a representation for review of his appraisal and his final rating as given by moderation committee be restored. The respondents had vide order dated 01.08.2015 (A/10) considered the prayer of the applicant for review of his appraisal and rejected it. The respondents vide order dated 14.10.2015 (A/11) rejected the prayer of the applicant for conducting review DPC. The applicant thereafter did not challenge both the orders of the respondents O.A.No.322of 2015 22 before any appropriate forum. The applicant then approached Hon'ble High Court by filing WP (C) No. 6984/2017 challenging the order dated 19.06.2015 passed by this Tribunal and order dated 14.10.2015 passed by the respondents in rejecting the prayer for review DPC. Hon'ble High Court vide order dated 19.12.2019, remitted back the matter to this Tribunal for fresh adjudication. The applicant then filed MA No. 322/2015 in 2020 for amending the OA for incorporating some documents and challenging the order dated 01.08.2015 and 14.10.2015. Respondents in their objection to the MA had submitted that by incorporating new facts and documents in the OA which has been remitted back by Hon'ble High Court the applicant is seeking relief which was not part of the OA and this would change the nature and characteristics of the OA. This Tribunal vide order dated 23.12.2020 while allowing the MA for amendment observed that the respondents would not be prejudiced since they have the opportunity of fling counter and raising objection therein.
22. The prayer of the applicant in this OA is to direct the respondents to give him promotion to the applicant from E6 to E7 retrospectively with all consequential benefits by holding review O.A.No.322of 2015 23 DPC from the date of the promotion of his juniors taking into consideration the appraisal rating given by the Reporting and Reviewing Authorities and the Rationalisation Committee in the AARs for the year 2011-12, 2012-13 and 2013-14 ignoring the points awarded by the then Cadre Controlling Authority and the Accepting Authority. The applicant relies on decision of Hon'ble Apex Court in the case of UC Panda vs UOI &Ors 2011 (1) GLT 614 and Abhijit Ghosh Dastidar vrs UOI &Ors 2009 (16) SCC 146 in support of the contention that uncommunicated adverse remarks cannot be considered for promotion.
23. Learned counsel for the respondents on the other hand submitted that the rating given by the Cadre Controlling Authority and Accepting Authority are part of the appraisal process and the same cannot be ignored. He further submitted that even though the AARs for the year 2012-13 & 2013-14 were not communicated to the applicant before the DPC but the applicant after obtaining it through RTI had submitted his representation which was considered first by the competent authority and then appeal was also considered and rejected. He submitted that as per law, opportunity was given to the applicant and since there O.A.No.322of 2015 24 was no ground for reviewing of his AARs and the initial score was confirmed there is no ground for holding review DPC. He further submitted that after rejection of both the appeal i.e. for review of his AARs and for holding review DPC way back in the year 2015, the applicant did not challenge the same before any competent forum. In the Hon'ble High Court also the applicant did not challenge the order of rejection for review of his AARs, even though that was in his knowledge but only challenged the order of the Tribunal and order rejecting his prayer for holding review DPC. It is submitted that applicants prayer for quashing the order rejecting his prayer for review of his AARs by treating the rating given by the Cadre Controlling Authority and Accepting Authority is barred by limitations.
24. It is the stand of the respondents that the after completion of appraisal process the same are uploaded to the company's intranet and therefore the applicant had full knowledge about it. The applicant on the other hand contested the same and submitted that the same was not uploaded and he obtained it through RTI. Learned counsel for the respondents submitted that the applicant in his representation dated 18.06.2015 had O.A.No.322of 2015 25 admitted that he had knowledge of the uploaded finalized AARs for 2012-13 in intranet on 06.04.2015 and for the year 2013-14 on 15.05.2015. However after the same came into knowledge of the applicant, the applicant had submitted his appeal which was disposed of regretting the claim of the applicant. Thus the provision of law and rules has been complied with and there is no scope for Tribunal to interfere.
25. The applicant had not challenged the order dated 01.08.2015 rejecting his claim for review before this Tribunal or appropriate forum. He had also not challenged the same before Hon'ble High Court. By way of amendment to this OA, he had challenged it in the year 2020. There is much force in the submission of learned counsel for the respondents that there is delay in challenging the same and it has attained finality.
26. It is a well settled decision that appraisal should be communicated to the employees for giving him scope to ventilate his grievance. Even though learned counsel for the applicant submitted that the appraisals have been communicated to him vide RTI after completion of DPC, it is seen that DPC for 2014 was held on 05.02.2015 and the appraisals for 2011-12 & 2012- O.A.No.322of 2015 26 13 were completed much prior to that. The applicant after rejection of his case in the 2013 DPC held on 27.03.2014 could have obtained it and submitted it for review. Learned counsel for the applicant relying on decision of Hon'ble Apex Court in the case of Abhijit Ghosh Dastidar vrs Union of India (2009)16SC146 and Dev Dutt vrs Union of India2008(8)SCC725 submitted that since appraisals were not communicated to the applicant the applicant has been prejudiced. Be that as it may be, as per settled law, if the appraisals of an employee has not been communicated and taken into consideration in the DPC, then the same should be communicated and opportunity has to be given to the employee to appeal and the authority should consider the appeal and if the appraisals are reviewed then his case should be considered for promotion by way of review DPC. In the instant case, it is seen that the applicant on 20.03.2015 had first submitted a representation before the GM for review of his AARs. After it was rejected vide order dated 18.05.2015, he submitted an appeal date 18.06.2015 before the CMD, NALCO for review of his AARs. In the said appeal he had also prayed for declaring the rating given by the Cadre Controlling Authority and Accepting O.A.No.322of 2015 27 Authority as null and void. But the same was rejected by the respondents vide order dated 01.08.2015. The applicant did not challenge the said order before any appropriate forum and for the first time did it in this OA that too by way of amending it through MA in the year 2020, i.e. after almost 5 years. No explanation for delay in challenging the same has been explained. Thus, the action of challenging the order dated 01.08.2015 (A/10) is barred by limitations.
27. It is settled law that what cannot be done directly, cannot also be done indirectly. No authority is required for this proposition, but if any authority is required the authorities in the case of Jagir Singh Vs. Ranbir Singh and Another and the case of District Collector, Chittor and Others Vs. Chittoor District Groundunt Traders" Association, Chittoor and Others are sufficient. In Jagir Singh's case the Supreme Court has held that what cannot be done directly, cannot be allowed to be done indirectly as that would be an evasion of the statute. The Supreme Court has held that it is a well known principle of law that the provisions of law cannot be evaded by shift or contrivance. The Supreme Court has held that in an indirect or O.A.No.322of 2015 28 circuitous manner the objects of a statute cannot be defeated.
28. The applicant in this OA is trying to evade the provisions of EPAS in which the activities of the AAR starts from distribution of Blank Appraisal and ends finally being accepted by the Accepting Authority. The AARs would be incomplete without being accepted by the authority. His representation and appeal for declaring the rating given by the Cadre Controlling Authority and Accepting Authority as null and void has been rejected and those ratings have become final. The applicant in this OA instead of seeking direction for review of his AARs is seeking direction not to take into account the ratings given by the Cadre Controlling Authority and Accepting Authority and conduct Review DPC keeping the score of moderation committee and given him promotion. Whereas the applicant has not quoted any provisions of rules under which that prayer can be accepted apart from the process of EPAS which does not provide for the same.
29. Awarding of grading and reviewing it is the discretion of the authorities and its not for the Tribunal to decide on what grading the employee should get or whether the gradings is commensurate with his work profile. The respondents O.A.No.322of 2015 29 considered his appeal and rejected it as per company's rule and policy. This Tribunal does not find any illegality in it warranting interference by this Tribunal. Since the appeal of the applicant for review of his AARs was rejected and the same having attained finality, the rating given in the said AARs stands as of today, therefore since the original ratings remain unaltered, the question of conducting review DPC does not arise.
30. Accordingly in view of the above discussions the OA is dismissed being devoid of merit. No costs.
(Rajnish Kumar Rai) (Pramod Kumar Das)
Member (Judl.) Member (Admn.)
(KB/PS)
O.A.No.322of 2015
30
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA260/00322 of 2015
Reserved on: 09.01.2024
Pre-delivery draft order in the above case is placed below for kind perusal and concurrence.
Member (Judicial) Hon'ble Member (Admin) O.A.No.322of 2015